204 P. 492 | Or. | 1922
— The first question presented by this appeal arises upon the refusal of the court (a) to grant a nonsuit, and (b) to direct a verdict in favor of the defendant, in response to motions seasonably made by defendant therefor.
Defendant contends that the omissions of which plaintiff complains were not the proximate cause of
“The proximate cause of an injury is that cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred”: 22 R. C. L. 110.
“Tbe principle is well settled tbat a wrongdoer is liable for tbe injury wbicb resulted as tbe natural and probable consequence of bis wrongful act, of wbicb be ought to bave foreseen in tbe light of surrounding circumstances. And as tbe court said in Ransier v. Minneapolis etc. Ry. Co., 32 Minn. 334 [20 N. W. 332] : ‘Whether tbe injury in a particular case was such natural and proximate result of tbe wrong complained of is ordinarily for tbe decision of tbe jury.’ Reiper v. Nicols, 31 Hun (N. Y.), 495. It is their province to look at the facts as they transpired and ascertain whether they are naturally and probably connected in ordinary sequence with tbe prime cause, or disconnected by some intervening agency affecting its operation.” Hartvig v. N. P. L. Co., 19 Or. 522, 525 (25 Pac. 358).
“The ordinary conditions or forces of nature, such as ordinary wind, cold, heat, and the like, that are usual at the time and place and under the circumstances, and that reasonably should have been expected or foreseen as probable to occur, are not, in general, independent, efficient causes, when they affect or operate on a negligent act or omission in causing a result. Those who are negligent are held in law to know the usual effect of ordinary natural conditions and forpes on a negligent act or omission, and to have contemplated the appearance and the effect of such' conditions and forces on their negligence or on its proximate results, and to be liable in damages for the natural and probable proximate results of the negligence”: 22 R. C. L. 140..
Many authoritative and approved definitions of proximate cause, as that term is understood in the law of negligence, are quoted in the cases of Brown v. Oregon Wash. R. & N. Co., 63 Or, 396, 403 (128 Pac. 38); Chambers v. Everding & Farrell, 71 Or. 521, 531—539 (136 Pac. 885, 143 Pac. 616).
A valuable guide in determining when a particular act or omission is the proximate cause of an alleged injury is set forth in the opinion in the case of Salmi v. Columbia & N. R. R. Co., 75 Or. 200 (146 Pac. 819, L. R. A. 1915D, 834).
Mr. Justice Burnett, speaking for the court, said:
*373 “It is a basic principle that, if the canse set in motion by the defendant operates continnonsly and directly upon another agency which as a necessary consequence affects a still different force by which injury is inflicted, the author of the initial cause is responsible for the final result. The difficulty lies in the application of this fundamental doctrine. The authorities are' apparently in hopeless conflict on this question, but it is believed that proper discrimination will reconcile them in this manner. If, under all the circumstances in the exercise of ordinary care, a person can discern that his act will naturally and probably result in harm of some kind to another, but not necessarily foreseen as to the exact form of injury, the former is liable in damages for the ensuing casualty. On the contrary, if no harmful result can reasonably be expected, or if there is no natural connection between the act of the defendant and the injury alleged, no action will lie.”
The Circuit Court, therefore, was not in error in submitting the question of defendant’s negligence to the jury and also the question of whether such negligence was the proximate cause of the injury to plaintiff.
Defendant advances the further contention that the undisputed evidence showed that its independent-contractor was guilty of the omissions which plaintiff claims were the ^proximate cause of his damages.
The contract of towing the barge from Astoria to Gold Beach came to an end when the captain of the tug beached, anchored and moored the barge in Yaquina Bay and notified defendant of his action.
Upon receipt of notice from Copeland that he was no longer looking after the barge, the responsible officers of the defendant dismissed the matter from their minds; they made no effort to ascertain whether the barge was safely secured and moored, and took no precautions to prevent the barge from being carried away by the action of the tides and winds.
More than a week elapsed between the time that defendant received the aforesaid notice from Copeland and the time the barge was carried away, which was ample time for the defendant to discharge the duty which devolved upon it, to ascertain what was reasonably required to make the barge safe, and to attend to and carry out necessary precautions.
While the barge laid upon the beach in Yaquina Bay, defendant owed a duty to plaintiff and others in like situation, to exercise reasonable care to secure and moor the barge in such a manner that it would not be carried away by ordinary wind and tides.
Where a party is under a duty to the public to so care for property owned by him that it will not injure the property of others, that duty is absolute, and cannot be delegated to an independent contractor: Thompson on Negligence, § 865; Covington etc. Bridge Co. v. Steinbrock, 61 Ohio St. 215 (55 N. E. 618, 76 Am. St. Rep. 375, and note on p. 404); Carrick v. Southern Power Co., 157 N. C. 378, 381 (72 S. E. 1065); Cole v. Durham, 176 N. C. 289 (97 S. E. 33, 11 A. L. R. 560); Boucher v. New York, N. H. & H. Ry. Co., 196 Mass. 355 (82 N. E. 15, 13 L. R. A. (N. S.) 1177).
The evidence, not only does not show that responsibility for the acts of negligence complained of were those of an independent contractor, but it establishes as a matter of law that the responsibility was that of the defendant, and not that of an independent contractor.
The court further assumed to make a concrete application of some of the exceptions mentioned, and directed the jury that if they found the barge was a dangerous instrumentality and was likely to cause damage unless properly secured and moored, the defendant could not delegate the duty of securely mooring the same, to an independent contractor, and defendant would be liable if found negligent as charged; that if they found the work of securing and
Defendant assigns as error the instructions defining and applying the above-mentioned exceptions. The instructions complained of, for the most part correctly stated the rule of law relative to the release of an employer from liability for the negligence of an independent contractor, and likewise the exceptions to the rule. Defendant complains that there were no issues made by the evidence, to which the instructions defining the aforesaid exceptions were referable, and on that account, the instructions were abstract and calculated to mislead the jury, and we think the record supports defendant’s contention.
“One who is entitled to nothing cannot complain that he gets something, but less than he asks.” Railway Co. v. Suddoth, 70 Miss. 265 (12 South. 205).
It is not probable that the jury were misled, to the prejudice of defendant, by the instructions of which defendant complains, and the nature and amount of the verdict justifies no inference that the jury were so misled.
“If you find that even though there had been a contract for towing, yet if later the defendant took possession or control of the barge, and then negligently moored or secured or tied it so that this accident happened, then the defendant would be liable to the plaintiff for the damages, if any.
*381 “If you should find that even though there had been a contract for towing, yet if later, the defendant took possession or control of the barge, and then negligently moored or secured or tied it so that this accident happened, or if you should find that after the towing company had left the barge in a dangerous condition known to the defendant, if it was left in a dangerous condition, or if it should have been known by the defendant, it was then the duty of the defendant to use reasonable care to properly secure said barge.”
The foregoing instructions are embraced in defendant’s assignments of error XIV and XV. Taken together, the instructions quoted contain correct statements of law, and they were applicable under the facts as disclosed by the evidence adduced upon the trial. No error was committed by the court in so directing the jury.
The court refused a request made by defendant to instruct the jury in effect, that if they found from a preponderance of the evidence that there was negligence in securing or mooring the barge in any particular, as alleged, and that such negligence was the proximate cause of the damage, if any, suffered by the plaintiff, it would then be necessary for the jury to determine whether or not such negligence could be attributed to the defendant, and that if they found that such, negligence was that of an independent contractor, plaintiff would not be entitled to a verdict. Defendant assigns error upon the refusal of the court to give the instruction mentioned. The court, in its
. There was some evidence to go to the jury to prove that the piece of rope in question was a section of one of the lines with which the barge was tied.
The only effect of admitting the piece of rope in evidence was to display before the jury the appearance of a rope five eighths of an inch in diameter, which could not have worked harm to defendant, even though it was not a piece of the rope with which the barge was tied, as the ordinary juryman has a fairly accurate idea of the appearance and strength of such
Finding no prejudicial error committed by the court in the trial of the cause, the judgment of the Circuit Court is affirmed. Affirmed. Rehearing Denied.